Osman v The Queen - [2012] NZCA 32

IN THE COURT OF APPEAL OF NEW ZEALAND

CA381/2011
[2012] NZCA 32

BETWEEN MUTAZ MOHAMMED OSMAN
Appellant

AND THE QUEEN
Respondent

Hearing: 13 February 2012

Court: Stevens, Ronald Young and Andrews JJ

Counsel: B J Hart and M J Porner for Appellant
M D Downs for Respondent

Judgment: 23 February 2012 at 3.15 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

A serious robbery

At around 5.00 am on 5 December 2009 Mr Osman, the appellant, and a co‑defendant, Ahmed Zafiri, confronted the complainant, a trainee priest, and demanded his bag. The complainant resisted. The appellant held the complainant while the co‑defendant struck him about the head with a metal wheel brace. When the complainant fell to the ground, both attackers continued the assault. The appellant repeatedly kicked the complainant while the co‑defendant delivered further blows with the wheel brace. The complainant suffered a fractured skull and other serious injuries. His bag was taken and the two men ran off. Following trial and conviction on a charge of aggravated robbery, the appellant was sentenced by Judge Aitken in the District Court to a term of imprisonment of three years and six months.[1] The appellant challenges both conviction and sentence.
[1] R v Osman DC Auckland CRI-2009-004-26901, 15 June 2011 [sentencing remarks].
Mr Zafiri pleaded guilty to a charge of aggravated robbery under s 235(a) of the Crimes Act 1961. He entered his guilty plea at a very early opportunity and initially received a community-based sentence. Following an appeal by the Solicitor-General to the High Court, the sentence was quashed and replaced with a term of imprisonment of two years and 11 months.[2] In dealing with the appeal, Ronald Young J referred to what he found was “very serious offending”.[3]
[2] New Zealand Police v Zafiri HC Auckland CRI-2010-404-316, 16 November 2010.
[3] At [34].
The appellant initially faced two charges, namely, aggravated robbery pursuant to s 235(b) of the Crimes Act (the “being together with” species of aggravated robbery) and causing the complainant grievous bodily harm with intent to do so under s 188(1) of the Crimes Act. When the case came to trial in the District Court, the Crown invited the Judge to remove from the indictment the second count relating to causing grievous bodily harm. This was on two bases, namely, that such a charge was superfluous as the infliction of grievous bodily harm was central to the commission of the robbery and second Mr Zafiri, as the probable instigator of the violence, had faced no such separate charge. The Judge agreed, essentially for the same reasons. Trial counsel acting for the appellant (who was different from the counsel acting for the appellant on appeal) consented to the application.
The appellant was found guilty by the jury of the single count of aggravated robbery under s 235(b) of the Crimes Act. He appeals his conviction on three main grounds. These raise the following issues…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Osman v The Queen

Details

AGLC: Osman v The Queen [2012] NZCA 32
Case: [2012] NZCA 32
Decision Date: 23 February 2012

CaseChat Overview and Summary

The case of Osman v The Queen involved an appeal against the conviction and sentence of Mutaz Mohammed Osman for aggravated robbery. The appellant and his co-defendant, Ahmed Zafiri, confronted a trainee priest, assaulted him, and stole his bag. The appellant was sentenced to a term of imprisonment of three years and six months. The appellant challenged both the conviction and the sentence. The key legal issues before the Court were whether the trial Judge's directions to the jury regarding the appellant's liability, the jury hearing evidence about the appellant's silence when arrested, and the Crown's application to remove the grievous bodily harm count from the indictment, caused a miscarriage of justice. Additionally, the Court considered the appeal against the sentence.

The Court found that the acknowledged error in the question trail and the summing up referring to potential party liability did not cause a miscarriage of justice. The evidence of independent witnesses supported the appellant's involvement in the robbery as more than just a party. The Court also found that the failure of the trial Judge to give a direction to the jury pursuant to s 32(2)(b) of the Evidence Act did not result in a miscarriage of justice. Finally, the Court held that the appellant suffered no prejudice through the order amending the indictment.

Regarding the sentence appeal, the Court rejected the submission that the appellant played an inactive role in the attack and found that the Judge's assessment of the appellant's culpability was appropriate. The Court also found that the Judge's approach to the discounts for mitigating factors was sound and unimpeachable.

In conclusion, the Court dismissed the appeals against both conviction and sentence. The final orders of the Court were that the appeals against conviction and sentence are dismissed.

Orders